1. Premeditation means to have thought over the matter beforehand, in other words, to have
formed the design or intent to kill before the act. Although there is no specific time period
required for premeditation, the concept of premeditation requires more than the
instantaneous, intentional act of taking another's life.

2. Premeditation and deliberation may be inferred from the established circumstances of a
case, provided the inference is a reasonable one.

3. In reviewing the sufficiency of the evidence, an appellate court's function is not to
determine the most compelling inference to be drawn from the evidence. Rather, a
factfinder is permitted to reasonably infer the existence of a material fact from
circumstantial evidence, even though the evidence does not exclude every other
reasonable conclusion or inference.

4. In a prosecution for premeditated first-degree murder, where the circumstantial evidence
could lead to a reasonable inference that the offense committed may have been second-degree
murder, the trial court has the duty to give a requested lesser included offense
instruction on that degree of homicide, notwithstanding the perceived strength of the
evidence supporting premeditation.

5. A prosecutor may not offer the jury the prosecutor's personal opinion as to the credibility
of witnesses. However, a prosecutor may explain the legitimate factors which a jury may
consider in assessing witness credibility and may argue why the factors present in the
current case should lead to a compelling inference of truthfulness.

6. In a direct appeal from sentencing, the district court's order for the defendant to reimburse
the Board of Indigents' Defense Services for attorney fees will be vacated and remanded if
the district court failed to make explicit findings on the record as to the defendant's
financial resources and as to the burden the fees assessment will impose on the defendant.

7. The Board of Indigents' Defense Services application fee is assessed at the time the
defendant applies for court-appointed counsel. If the application fee remains unpaid at the
time of sentencing, the district court may include the unpaid fee in its sentencing order
without making any additional findings.

8. Prior criminal convictions and juvenile adjudications may be included in a defendant's
criminal history score without their existence having been found beyond a reasonable
doubt by the jury.

Janine Cox, of Kansas Appellate Defender Office, argued the cause and was
on the brief for the appellant.

Edmond D. Brancart, deputy district attorney, argued the cause, and
Jerome A. Gorman, district attorney,
and Paul J. Morrison, attorney general, were with him on the brief for the appellee.

The opinion of the court was delivered by

JOHNSON, J.: William Scaife appeals his convictions and sentences for premeditated
first-degree murder, attempted premeditated first-degree murder, aggravated robbery, and fleeing
or attempting to elude a police officer. Scaife argues that (1) the trial court should have instructed
on second-degree murder, as requested by counsel; (2) the evidence was insufficient to support
the premeditated first-degree murder conviction; (3) in closing argument, the prosecutor
improperly vouched for the credibility of the State's prime witness; (4) the sentencing court failed
to consider Scaife's ability to pay when ordering the reimbursement of attorney fees to the State
Board of Indigents' Defense Services (BIDS); (5) the sentencing journal entry did not comport
with the sentencing court's pronouncement from the bench with respect to the BIDS application
fee; and (6) the sentencing court erred in imposing a higher sentence based upon a criminal history
which was not proved to the jury beyond a reasonable doubt. Finding sufficient evidence to
support the premeditation element of first-degree murder but an erroneous denial of the requested
second-degree murder instruction, we reverse the premeditated first-degree murder conviction
and remand for a new trial. The remaining convictions and sentences are affirmed, except for the
assessment of BIDS attorney fees, which is vacated and remanded.

The charges against Scaife arose from a shooting and robbery in a Kansas City residence
from which Patrick Ross and William Thompson had conducted a high volume of drug sales and
in which the two, and sometimes others, frequently consumed their merchandise. The residence
was equipped with video monitoring and was secured against unwanted intrusions. Scaife had
recently returned to the Kansas City area and gained entrance into the residence as a prior
acquaintance of Ross.

On the night of the shooting, Ross, Thompson, and Scaife were lounging in the residence,
smoking marijuana. Shortly after midnight, the three were watching television, with Thompson
lying on a futon mattress on the floor and Scaife seated a few feet behind the futon. According to
Ross, Scaife suddenly and without warning shot Thompson in the head three times and then rose
from his seat and shot Ross four times. Scaife said nothing immediately prior to or during the
shooting spree.

Ross pretended to be dead but was able to observe Scaife's movements through squinted
eyes. He said that Scaife took everything from Thompson's pockets, including a gun and
marijuana. Scaife then lifted Ross by the waist of his pants and took Ross' wallet, as well as taking
drugs that were lying on the living room table. Ross heard Scaife move through the house,
apparently trying to find a way out. He heard glass breaking in the kitchen and assumed that
Scaife had broken the kitchen window and jumped from the second-story window to escape.
Later, police found a black gun holster and some money beneath that broken kitchen window.

After Scaife left, Ross called 911 and reported the shooting. Ross told the dispatcher that
he thought he was dying and wanted someone to know that Scaife had shot Thompson and him.
Ross testified at trial and identified Scaife as the shooter and as the person who robbed them of
money, guns, and drugs.

Law enforcement officers testified as to two subsequent incidents in which Scaife fled
when an officer attempted to detain him. That activity formed the basis for the fleeing or eluding
conviction which is not directly involved in this appeal.

SUFFICIENCY OF THE EVIDENCE

We take the liberty of first considering Scaife's challenge to the sufficiency of the evidence
to support the premeditated murder and attempted premeditated murder convictions. Specifically,
Scaife contends that the State did not prove the critical element of premeditation. See K.S.A.
21-3401(a).

"When the sufficiency of the evidence is reviewed in a criminal case, this court
must
consider all of the evidence, viewed in a light most favorable to the prosecution, and determine
whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
[Citation omitted.]" State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006).

The district court's elements instruction on first-degree murder included the following
definition of premeditation:

"Premeditation means to have thought over the matter beforehand, in other words,
to
have formed the design or intent to kill before the act. Although there is no specific time period
required for premeditation, the concept of premeditation requires more than the instantaneous,
intentional act of taking another's life."

Scaife points to Ross' testimony that all was well with the group when Scaife suddenly and
inexplicably started shooting. Scaife contends that Ross' testimony describes an instantaneous act,
rather than a premeditated act.

Premeditation and deliberation may be inferred from the established circumstances of a
case, provided the inference is a reasonable one. State v. Morton, 283 Kan. 464, 475,
153 P.3d
532 (2007). Prior cases have listed factors to consider when determining the question of
premeditation: (1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's
conduct before and after the killing; (4) threats and declarations of the defendant before and
during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and
rendered helpless. See State v. Oliver, 280 Kan. 681, 704, 124 P.3d 493 (2005),
cert. denied 547
U.S. 1183 (2006).

In reviewing the factors, Scaife argues that Ross' description of the lack of provocation,
the defendant's conduct before and after the shooting, and the absence of any threats or
declarations by the defendant before or during the occurrence logically support an inference that
the act was spontaneous and unplanned, rather than premeditated. He discounts the use of a
deadly weapon because all of the occupants of the drug house were armed and notes that the
shots were fired in rapid succession, rather than being administered after the victims were felled
and helpless.

Thus, because Scaife believes the more reasonable inference to be drawn from the
evidence is spontaneity, rather than premeditation, he concludes that the evidence was insufficient
to support the premeditated first-degree murder conviction. However, that is not our standard; we
do not weigh the evidence. State v. Beard, 273 Kan. 789, Syl. ¶ 5, 46 P.3d
1185 (2002) (it is not
the appellate court's function to weigh the evidence).

The State takes the same circumstances and provides a credible explanation as to how a
reasonable person could infer that Scaife's actions were pursuant to a previously devised plan to
kill and rob the victims. Scaife gained the victims' confidence, waited until the three were alone in
the house, and then, without provocation, used a concealed firearm to fire multiple rounds into
both victims, before robbing them and leaving them for dead so that they would be unavailable to
identify their attacker.

However, our function in reviewing evidence sufficiency is not to select the inference
which we find most compelling, but to view the evidence in a light most favorable to the
prosecution. We permit a factfinder to infer the existence of a material fact from circumstantial
evidence, even though the evidence does not exclude every other reasonable conclusion or
inference. Yount v. Deibert, 282 Kan. 619, Syl. ¶ 1, 147 P.3d 1065 (2006).
Moreover, a
conviction of even the gravest offense may be sustained by circumstantial evidence. State v.
Lopez, 36 Kan. App. 2d 723, 725, 143 P.3d 695 (2006). Here, we hold that one of the
reasonable
conclusions or inferences the jury could have drawn from the circumstantial evidence was that
Scaife had thought the matter over beforehand and that his intent to kill Thompson and Ross was
premeditated.

LESSER INCLUDED OFFENSE INSTRUCTION ON SECOND-DEGREE
MURDER

In a factually related issue, Scaife complains that the district court erred in refusing to give
an instruction on second-degree murder, K.S.A. 21-3402, with respect to the killing of
Thompson. The State had filed the charges as first-degree murder on the alternative theories of
premeditation and felony murder. The trial judge determined that a lesser included offense
instruction was not warranted because the State filed a felony-murder charge and the evidence of
the underlying felony was neither weak nor inconclusive. See State v. Boyd, 281 Kan.
70, 90, 127
P.3d 998 (2006) (trial court required to instruct on lesser included offenses of felony murder only
when the evidence of the underlying felony is weak, inconclusive, or conflicting). The district
court did note that if the sole charge in the complaint had been premeditated first-degree murder,
a lesser included instruction on second-degree murder would have been appropriate. See K.S.A.
22-3414(3).

We need not discuss whether lesser included instructions were appropriate on the
alternative theory of felony murder. The complaint charged and the jury found Scaife guilty of
premeditated first-degree murder. In a prosecution for premeditated first-degree murder, where
there is no direct evidence as to the circumstances of the killing and the evidence introduced
against the defendant is wholly circumstantial and open to an inference by the jury that the offense
committed may have been second-degree murder, it is the duty of the court to instruct the jury
respecting that lesser degree of homicide. State v. Sanders, 258 Kan. 409, 416, 904
P.2d 951
(1995).

More recently, in State v. Jones, 279 Kan. 395, 406-07, 109 P.3d 1158
(2005), this court
clarified and simplified the analysis for determining when a trial judge must give a requested
second-degree murder instruction as a lesser-included offense of premeditated first-degree
murder, as that primary crime of first-degree murder is currently defined by statute. The
unanimous decision in Jones instructed:

"In short, [the defendant] has a right to an instruction on second-degree intentional
murder as long as the evidence, when viewed in the light most favorable to [the defendant],
would reasonably justify a jury's conviction on the offense, and the evidence does not exclude a
theory of guilt on [second-degree murder]." 279 Kan. at 401.

Direct evidence is such evidence which, if believed, proves the existence of a fact without
inference or presumption, as for example the testimony of an eyewitness as to what he or she
actually saw, heard, or touched. See State v. Corbett, 281 Kan. 294, 309, 130 P.3d
1179 (2006).
The State suggests that Ross' eyewitness testimony provided direct evidence of premeditation.
However, nothing that Ross saw or heard directly proves the fact which is in issue,
i.e.,
premeditation. One must take the additional step of drawing inferences from the eyewitness'
description of what Scaife did and said (or did not say) to speculate as to what Scaife must have
been thinking and how long he had been thinking it before pulling the trigger.

Although admittedly infrequent, direct evidence of premeditation does exist in some cases.
An associate might testify that the defendant shared his or her plans to kill the victim or a cellmate
might relate how the defendant bragged about his or her daring deed. Sometimes, a defendant will
have previously threatened to kill the particular victim. A shooter might declare, immediately prior
to pulling the trigger, "This is for cheating me out of my money (or drugs)." However, we need
not quibble about whether direct evidence of premeditation can ever exist. Suffice it to say that in
this case, there was no direct evidence of premeditation.

Nevertheless, premeditation may be, and is most often, proved by circumstantial evidence.
As we determined above, the circumstances of this case could be sufficient to prove
premeditation. On the other hand, Scaife's sudden, unprovoked, and inexplicable shooting of
Thompson, performed without uttering a word, could indicate to a rational jury that the killing
was nothing more than an instantaneous, intentional act. Under the Jones test, the
evidence was
sufficient to support a second-degree murder conviction and, even viewing the evidence in a light
most favorable to the State, the circumstances did not exclude a theory of guilt on second-degree
murder.

The State argues that a lesser included offense instruction is not required where the
circumstantial evidence in a case provides a strong inference of premeditation or where the
evidence does not refute premeditation. Granted, one might divine support for such an argument
from some of our prior cases. See, e.g., State v. Boorigie, 273 Kan. 18,
41 P.3d 764 (2002)
(distinguished on its facts in Jones, 279 Kan. at 405). Nevertheless, we have
consistently said that,
when requested by the defendant, "'"the trial court has a duty to instruct the jury regarding all
lesser included crimes that are established by the evidence, regardless of whether the evidence is
weak or inconclusive." [Citation omitted.]'" Boyd, 281 Kan. at 93 (quoting
State v. Drennan, 278
Kan. 704, 712, 101 P.3d 1218 [2004]). No argument has been advanced, nor is one readily
apparent, for making an exception to that general rule in premeditated first-degree murder cases.
Thus, we hold that the perceived strength of the State's evidence to support the primary crime did
not, standing alone, preclude the necessity of giving the requested lesser included offense
instruction.

Moreover, on its face, the evidence supporting second-degree murder was not weaker or
more inconclusive than the evidence supporting the premeditation element of first-degree murder.
Indeed, it was essentially the same evidence: a sudden, unprovoked, inexplicable, and silent
shooting of a companion, who had trusted Scaife sufficiently to grant him entry into the fortified
drug house and with whom Scaife had spent several amicable hours ingesting drugs while both
men were armed. The State says that evidence shows that Scaife obviously planned to rob and kill
Thompson; Scaife says that evidence shows that he obviously acted instantaneously, without
thought over the matter beforehand. Arguably, both characterizations are "speculative scenarios."
Likewise, Ross' testimony could be described as "tenuous evidence" of either premeditation or an
instantaneous killing.

To reiterate, we are only discussing the killing of Thompson, the first to be shot. On the
attempted premeditated first-degree murder charge relating to the subsequent shooting of Ross,
for which the evidence of premeditation was arguably stronger, Scaife received a lesser included
instruction on attempted second-degree murder. The district court should have followed its first
instinct and given the same lesser included offense instruction for the Thompson shooting.

The State makes a practical argument that the giving of lesser included offense
instructions where first-degree murder is charged and instructed on the alternative theories of
premeditation and felony murder would be too confusing for the jury. One might perceive that any
confusion in that circumstance emanates from the curious rule that permits a jury to convict on a
combination of the premeditated and felony-murder theories. Nevertheless, while drafting an
appropriate jury instruction may require some careful consideration, that fact cannot dictate
against giving a criminal defendant the benefit of lesser included offense instructions,
i.e., to allow
the jury to convict a defendant of the crime actually committed.

Finally, the State makes a cursory reference to harmless error. For the shooting of Ross,
the jury was given lesser included offense instructions, including attempted second-degree
murder. The jury found Scaife guilty of attempted premeditated first-degree murder. The apparent
suggestion is that the jury found premeditation based on the same facts, even when given the
choice of attempted second-degree murder. While the argument has some superficial appeal, it
runs counter to the principle that each separate crime is to be viewed in isolation, unaffected by
the jury's decision on any other charge. Although not given in this case, we have a specific pattern
instruction that should be given when multiple counts are charged:

"Each crime charged against the defendant is a separate and distinct offense. You
must
decide each charge separately on the evidence and law applicable to it, uninfluenced by your
decision as to any other charge. The defendant may be convicted or acquitted on any or all of the
offenses charged. Your finding as to each crime charged must be stated in a verdict form signed
by the Presiding Juror." PIK Crim. 3d 68.07.

Accordingly, we find that the district court's refusal to give the requested lesser included
offense instruction on second-degree murder for the first shooting requires the reversal of the
premeditated first-degree murder conviction and a remand for new trial on that charge. See
Jones,
279 Kan. at 406-07 (failure to give second-degree murder instruction requires reversal).

PROSECUTORIAL MISCONDUCT

Scaife contends that the prosecutor committed misconduct in closing argument by
vouching for Ross' credibility. Although we have determined a new trial is mandated on the
premeditated first-degree murder conviction for the shooting of Thompson, we must nevertheless
consider the issue to determine whether Scaife is entitled to a new trial on the remaining
convictions.

The first step in the appellate review of a prosecutorial misconduct allegation is to
determine whether the prosecutor's comments exceeded the wide latitude afforded to prosecutors
in discussing the evidence. See State v. Albright, 283 Kan. 418, 428, 153 P.3d 497
(2007). If we
determine that the prosecutor's comments were fair argument on the evidence, our inquiry is
concluded.

Scaife points to two portions of the State's closing argument. In the first, the prosecutor
was commenting on the audiotape recording of Ross' call to 911, stating: "Listen to his voice,
listen to his pleading, listen to the manner in which he asked for help. That's how you know that
he's telling the truth." During Scaife's closing argument, his defense counsel focused on Ross'
credibility or rather lack thereof. Then, in rebuttal argument, the prosecutor responded: "Now,
why believe Patrick Ross? Folks, you saw him, you've heard him from the very beginning of this
case which was seconds after it began. Evaluate his testimony, evaluate his demeanor, evaluate
what he told you, and you don't have any other conclusion."

Generally, a prosecutor may not offer the jury his or her personal opinion as to the
credibility of witnesses. See State v. Elnicki, 279 Kan. 47, 60, 105 P.3d 1222 (2005).
On the
other hand, a prosecutor is free to craft an argument that includes reasonable inferences to be
drawn from the evidence. See State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321
(2000). That
latitude would include explaining to the jury what it should look for in assessing witness
credibility, especially when the defense has attacked the credibility of the State's witnesses.

The first portion of the challenged comments draws the jury's attention to the
circumstances surrounding Ross' first identification of Scaife as the shooter during his 911 call. It
is certainly reasonable to infer that a person making an excited plea for help while believing that
death is imminent is less likely to be crafting a scheme to frame someone for the crime. Indeed, if
Ross had died and the substance of his 911 call had been presented to the jury by a third person, it
would likely have been considered trustworthy enough to survive a hearsay objection, as either an
excited utterance, K.S.A. 60-460(d)(2), or a dying declaration, K.S.A. 60-460(e). Here, the jury
was allowed to hear the statements firsthand through the audiotape recording, and the prosecutor
was permitted to argue those same trustworthiness factors as being pertinent to the defense's
credibility challenge.

In the second portion of the closing argument, the prosecutor was answering the defense
attack on Ross' credibility by explaining to the jury what it should look at when assessing that
credibility. The argument points out that Ross implicated Scaife almost immediately after the
shooting and that his story remained constant throughout the case. The prosecutor urged the jury
to consider what Ross said and how he said it, i.e., his demeanor. One of the reasons
that
appellate courts do not assess witness credibility from the cold record is that the ability to observe
the declarant is an important factor in determining whether he or she is being truthful. Certainly,
the prosecutor should be permitted to explain that facet of the credibility calculus to the jury.

Accordingly, we find that the prosecutor's comments were not a prohibited personal
opinion on Ross' credibility. Rather, in context, the statements explained to the jury some of the
legitimate factors it could consider in assessing Ross' credibility and argued why the factors
present in the current case should lead to a compelling inference of truthfulness. In other words,
the comments were fair argument on the evidence and did not constitute prosecutorial
misconduct.

ATTORNEY FEES REIMBURSEMENT

Scaife challenges the sentencing court's ruling that he reimburse BIDS for his attorney fees
under K.S.A. 22-4513(b) without first considering his financial resources and the nature of the
burden that payment would inflict on him. Resolution of the issue requires us to interpret the
applicable statute, which is a question of law subject to unlimited review. State v.
Rogers, 282
Kan. 218, 222, 144 P.3d 625 (2006).

The State concedes that the district court's failure to make the requisite findings on the
record runs counter to our holding in State v. Robinson, 281 Kan. 538, 132 P.3d 934
(2006).
However, the State attempts to factually distinguish Robinson as involving a
probation
revocation, rather than a direct appeal from sentencing. Our subsequent decision in State v.
Davis,
283 Kan. 569, 585-86, 158 P.3d 317 (2007), clarifies that the Robinson holding was
not limited
to a probation revocation scenario.

Clearly, the sentencing judge did not comply with the requirements of K.S.A. 22-4513, as
explained in Robinson. The court merely stated: "The costs in this matter are assessed
against the
defendant." Therefore, the imposition of attorney fees is vacated, and the matter is remanded for
the court to make explicit findings on the record as to Scaife's financial resources and the burden
that imposing the attorney fees reimbursement will place on the defendant.

SENTENCING JOURNAL ENTRY

Scaife complains that the sentencing journal entry includes an order that he pay the BIDS
application fee, as set forth in K.S.A. 22-4529, after the judge failed to pronounce that part of the
court's judgment at the sentencing hearing. Scaife points out that the issue involves statutory
construction, yielding an unlimited review. See State v. Maass, 275 Kan. 328, 330, 64
P.3d 382
(2003).

Scaife reminds us of the longstanding rule that a criminal sentence is effective when
pronounced from the bench, rather than when the journal entry of sentencing is filed. Further, "'[a]
journal entry which imposes a sentence at variance with that pronounced from the bench is
erroneous and must be corrected to reflect the actual sentence imposed.'" Abasolo v.
State, 284
Kan. 299, 304, 160 P.3d 471 (2007) (quoting State v. Hegwood, 256 Kan. 901, 906,
888 P.2d
856 [1995]). Thus, Scaife believes that the sentencing judge's pronouncement that "costs in this
matter are assessed against the defendant" was insufficient to be an order for the payment of the
BIDS application fee and that the journal entry in his case must be corrected to delete that order.

Sometime after Scaife filed his appellate brief, we filed our opinion in State v.
Hawkins,
285 Kan. 842, 176 P.3d 174 (2008), in which we distinguished the application fee of K.S.A.
22-4529 from the attorney fees reimbursement of K.S.A. 22-4513. We specifically noted that the
time for ordering the payment of the application fee is at the time the defendant applies for
appointed counsel, rather than at the time of sentencing. Then, if the ordered fees remain unpaid
at sentencing, the court may include the unpaid fee in its sentencing order without making any
additional findings. 285 Kan. 842, Syl. ¶¶ 5, 7.

Given that Scaife incurred his obligation to pay the application fee when he applied for
appointed counsel, long before sentencing, the court's subsequent assessment of "costs" would
include the previously ordered, but unpaid, application fee. Therefore, the journal entry did not
deviate from the court's pronouncement with respect to the BIDS application fee, and we need
not order that it be corrected.

CRIMINAL HISTORY

Finally, Scaife argues that the sentencing court violated the principles in Apprendi v.
New
Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when it used his prior
convictions and juvenile adjudications to increase his sentence beyond the otherwise prescribed
statutory maximum without submitting the convictions and adjudications to a jury for proof
beyond a reasonable doubt. As Scaife recognizes, we rejected this argument in State v.
Ivory, 273
Kan. 44, 41 P.3d 781 (2002); see also State v. Hitt, 273 Kan. 224, 234-36, 42 P.3d
732 (2002),
cert. denied 537 U.S. 1104 (2003) (use of prior juvenile adjudications in criminal
history score
constitutional). Scaife declares that Ivory was wrongly decided but offers nothing
new or
compelling to support that argument. Once again, we decline the invitation to retreat from the
holding in Ivory and its progeny.

Affirmed in part, reversed in part, vacated in part, and remanded with directions.

ROSEN, J., dissenting: I generally agree with the majority's conclusions, but I respectfully
dissent from the majority's finding that the record demonstrates an obligation to instruct the jury
regarding second-degree murder.

The difference between first-degree murder and second-degree murder is premeditation.
As the majority points out, a jury may reasonably infer premeditation from the circumstances of a
case. State v. Morton, 283 Kan. 464, 475, 153 P.3d 532 (2007). And I agree with the
majority's
conclusion that the circumstances of this case could lead the jury to reasonably infer that the crime
was premeditated.

I disagree with the majority's conclusion, however, that an instruction on second-degree
murder was mandated based on the facts.

The majority cites as a governing principle:

"In a prosecution for premeditated first-degree murder, where there is no direct evidence
as to the
circumstances of the killing and the evidence introduced against the defendant is wholly
circumstantial and open to an inference by the jury that the offense committed may have been
second-degree murder, it is the duty of the court to instruct the jury respecting that lesser degree
of homicide. State v. Sanders, 258 Kan. 409, 416, 904 P.2d 951 (1995)," (Emphasis
added.) State
v. Scaife, slip op. at 11.

The majority then defines direct evidence as evidence that, if believed, "proves the
existence of a fact without inference or presumption, as for example the testimony of an
eyewitness as to what he or she actually saw, heard, or touched. See State v. Corbett,
281 Kan.
294, 309, 130 P.3d 1179 (2006)." Slip op. at 11.

Although Ross was an eyewitness who testified in detail about what he actually saw,
heard, and experienced before, during, and after the shootings, the majority concludes that his
testimony was not direct evidence because it did not prove "what Scaife must have been
thinking." Slip op. at 12.

Ross testified that Scaife, Thompson, and he had spent much of the day together. The two
victims were watching television when, without any preliminary statement of his intentions, Scaife
shot Thompson to death and then shot Ross as he attempted to run away. Scaife was seated when
he shot Thompson. Ross observed Scaife searching through both Thompson's and Ross' pockets
and removing valuables. Ross heard a window break, and other evidence suggested that Scaife
left the house through that window.

What is missing, according to the majority, is testimony from Ross proving that Scaife
planned the shooting in advance. State v. Sanders, 258 Kan. 409, 416, 904 P.2d 951
(1995), does
not, however, require direct evidence of the defendant's state of mind; it does require direct
evidence of the circumstances of the killing. Those circumstances may, as in the
present case,
constitute the evidence demonstrating the defendant's state of mind. The direct evidence described
no provocation. It described no outburst from the defendant. It described a scene in which an
individual brought a firearm with him, waited until he was alone with two men who were seated
with their backs to him, shot those men repeatedly, robbed those men, and then made an
immediate escape from the scene. Premeditation does not require long-range planning but does
involve thinking of killing the victim before doing so. State v. Bedford, 269 Kan. 315,
328-29, 7
P.3d 224 (2000). The evidence before the jury constituted, in my opinion, ample direct evidence
of the circumstances to demonstrate premeditation and to satisfy the Sanders
requirement.

Our law does not require the prosecution to show what the defendant was thinking; it
requires only that the prosecution prove premeditation. There is no reason to distinguish between
direct evidence and circumstantial evidence of the defendant's state of mind. This court has
previously noted that the probative values of direct and circumstantial evidence are intrinsically
similar and there is no logically sound reason for drawing a distinction as to the weight to be
assigned to the two kinds of evidence. State v. Beard, 273 Kan. 789, 804-05, 46 P.3d
1185
(2002) (quoting State v. Sanders, 272 Kan. 445, Syl. ¶ 4, 33 P.3d 596 [2001]).
Indeed, "[i]ntent,
a state of mind existing at the time the offense is committed, does not need to be and rarely can be
directly proven. It may be established by acts and circumstances and inferences reasonably
deducible from evidence of acts and circumstances. See State v. Wilkins, 269 Kan.
256, 264-68, 7
P.3d 252 (2000)." State v. Dixon, 279 Kan. 563, 604, 112 P.3d 883 (2005).

This court has not in the past required a declaration from the defendant that he is planning
on killing someone in order to avoid a lesser homicide charge. Sanders, 258 Kan.
409, does not
state such a requirement. Furthermore, the requirements for proving premeditation are by statute
less rigorous now than they were at the time that Sanders was issued; the State need
no longer
prove that the crime was committed "maliciously, willfully, [and] deliberately." See
Bedford, 269
Kan. at 327; K.S.A. 21-3401(a). I see no reason for this court to heighten the
Sanders
requirement relating to direct evidence at this time when the legislature has reduced the elements
that must be proven for premeditated first-degree murder.

While it is true that a defendant has a right to jury instructions on all lesser included
offenses established by the evidence, however weak, unsatisfactory, or inconclusive the evidence
may appear to the court, that evidence must be substantial. State v. Lee,
263 Kan. 97, 99-100,
948 P.2d 641 (1997). Mere "tenuous evidence" supporting an instruction for a lesser crime does
not require the trial court to give the jury such an instruction. State v. Pierce, 260
Kan. 859, 867,
927 P.2d 929 (1996).

The majority in the present case takes the position that the defendant's silence before the
shooting constitutes evidence that he may have been seized by a sudden impulse to shoot his
companions multiple times. The defendant's silence is not, however, merely weak, unsatisfactory,
or inconclusive evidence of impulsive behavior; it lacks any substance whatsoever. The silence did
not support a defense theory of impulse. The defendant never claimed that he shot the victims on
impulse; he claimed he did not shoot the victims.

In State v. Boorigie, 273 Kan. 18, 41 P.3d 764 (2002), the defendant
requested
instructions on second-degree murder and voluntary manslaughter as lesser included offenses of
premeditated first-degree murder. To support the lesser included offenses, the defendant pointed
to the prosecution's evidence that he had a "quick and violent temper." 273 Kan. at 41. He
apparently reasoned that, in the absence of "direct" evidence of premeditation, a jury could
conclude that he acted in a sudden fit of temper. The prosecution pointed to the circumstances of
the crime, including the length of time required to strangle the victim and the defendant's prior
attempts to kill the victim. Rejecting a mandatory second-degree murder instruction, our court
concluded that "there was no evidence that the murder . . . was not a premeditated act,
perpetrated for the purpose of financial gain." 273 Kan. at 41.

The California Supreme Court addressed a similar situation in People v.
Prince, 40 Cal.
4th 1179, 57 Cal. Rptr. 3d 543, 156 P.3d 1015 (2007). The defendant argued that evidence of his
bad temper and mental disturbance gave rise to the possibility that he had committed murder in an
"explosion of violence" or as "afterthoughts," thereby necessitating an instruction on
second-degree murder. 40 Cal. 4th at 1266. The California court rejected this contention, noting
that the
evidence about his volatile state of mind lacked "substantial weight" and the argument against
premeditation was based on "speculative scenarios without any evidentiary basis." 40 Cal. 4th at
1266; see also State v. Lambert, 341 N.C. 36, 46, 460 S.E.2d 123 (1995) (unless
defendant
presents some evidence to negate evidence of premeditation, trial court has no duty to instruct on
lesser included offense; absence of prior threats and evidence that defendant was intoxicated
lacked sufficient weight to require second-degree murder instruction); cf. State v.
Dahlin, 695
N.W.2d 588, 600-01 (Minn. 2005) (lesser included offense instruction was required where
witnesses testified that defendant intended only to intimidate and not to kill victim).

The majority finds compelling in the present case the same kind of speculative scenario
that the Prince court rejected. In short, the majority position would require a jury to
give weight
to ephemeral evidence–or nonevidence–and to apply it to a speculative scenario in
order to reach
the strained conclusion that this crime was not premeditated. That is not the law in this state, and
it should not become the law of this state. I would affirm the premeditated first-degree murder
conviction.